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Saturday, 20 October 2012

Salient features of India constitution

The following are the
salient features of the Indian Constitution:

Written Constitution

Indian Constitution
is a written Constitution. Written constitution is that which is drafted after
a prolonged process of discussion by a representative body elected for this
very purpose, for example Constituent Assembly of India (1946-49). An unwritten
constitution, as in Britain, evolves from popular conventions, customs and
traditions along with the social values and ideals.

Ques. 1 : “Indian
Constitution lacks originality and rather is drawn from other Constitutions of
the world : Do you agree? Support your answer with reasonable arguments?

Ans. The Constituent
Assembly, desirous of providing the best features in the Constitution, drew
from many sources as shown below

British Constitution

Parliamentary
form of government

Rule
of law

Procedure
established by Law

United States
Constitution

Charter
of Fundamental Rights

Federal
structure of government

Electoral
Collage

Independence
of the judiciary

Judicial
review

Irish Constitution

Directive
principles of state policy

Australian
Constitution

Concurrent
List

Joint
sitting of the Parliament

French constitution

Ideals
of Liberty, Equality and Fraternity

Canadian Constitution

A
quasi-federal form of government a federal system with a strong central
government

Ques. 2 : Indian
Constitution is the most voluminous in the world. Discuss?

Ans. Indian
Constitution is the lengthiest in the world in terms of the number of articles.
Originally, at the time of being adopted, it consisted of 395 articles but
after 97 amendments (2012), it presently has more than 440 articles. There are
12 Schedules to amplify and support the contents in the Articles.

The reasons for the
voluminous nature of the Constitution are

There
are detailed provisions for various aspects of administration in order to
minimise conflict and confusion.

Being
a democratic country, there is a great need to lay down elaborately the
rights of the individuals. Hence, there is a seperate chapter on
Fundamental Rights.

A
federal constitution has to detail the rights and jurisdictions of the
centre and states. It is more so in India where much care is taken to
spell out in detail the functions of the states and centre. The idea is to
prevent any constitutional conflicts and crisis in the working of the
Constitution

Since
the Constitution draws from many Constitutions as shown above, it is bound
to be lengthy.

The
size and diversity of the country with a pluralist tradition require that
Constitution promote the same with detailed provisions. For example,
language policy.

Independent
bodies Election Commission, Union Public Service Commission, Comptroller
and Auditor General of India have been set up with elaborate provisions
for powers, independence etc which are in other Constitutions not a part
of the Constitution but only statutes.

Ques. 3 : Presidential
system of democracy can at best provide secondary solution to the existing
challenges to the Indian parliamentary democracy. Critically examine the
statement in light of recent developments?

Ans. The
Constitution of India adopts Parliamentary system of democracy in order to
represent the pluralist tradition and interests of the country. In the
parliamentary form, members of legislature provide the executive. That is, the
Council of Ministers who make up the executive are necessarily drawn from
legislature in order to enforce the highest forms of popular accountability.
The Council of Ministers is collectively responsible to the legislature.
Council of Ministers enjoy power till they have support of the popular house
Lok Sabha of India. There are many devices in the Constitution and various
statutes and rules with the Parliament holds the executive answerable. As a
last resort, no-confidence motion is provided to vote out the council of
ministers and either replace it with another party or coalition or have a
general election to the Lok Sabha.

Ans. The Constitution
contains all the basic features of a federation as shown below

Set
up a dual polity- the Union Government and the State Governments

Legislative,
administrative and financial powers are divided between the two levels of
government. All legislative powers are classified into three lists-the
Union List, the State List and the Concurrent List. Subjects of national
importance like banking, national security, currency, defence, railways,
post and telegraph, foreign affairs, citizenship, etc have been given to
the Union Parliament , being placed in the Union List. Items of provincial
and regional importance like police, local self government, agriculture,
law and order, health and entertainment have been given to the States, being
a part of the State List. Neither can legislate on the other’s List.
However, under rare and special circumstances, Union Parliament can
legislate on items in the State List. Concurrent List has subjects which
are of common interest such as socio economic planning, marriage and
divorce, adoption, succession, forests, transfer of property, preventive
detention, education, civil and criminal law, etc. The Union Parliament
and the State Legislatures enjoy co-equal powers to make laws in regard to
this List. However, if there is a conflict between a Union law and a State
law, the law made by the Union Parliament would prevail over the State
law, according to the doctrine of federal supremacy.

Each
level of government being provided with its own sources of revenue

Supremacy
of the written Constitution

Rigid
constitution

Independent
judiciary to settle disputes among the federal units. Supreme Court under
Art. 131 has exclusive and original jurisdiction in federal matters.

Even while the above listed essential features of federalism are found in
the Indian Constitution, there is a strong unitary tilt. For example,
states are not – ‘indestructible’ as in the USA. Union Parliament can not
only alter the area and boundaries of a state but can also abolish a
state. The Parliament has the residuary powers- that is powers that may be
left out of the three Lists detailed above. Emergency powers (Art. 352 and
356) of the Union Government can also turn the country into a unitary system.

Since 1992, with the making of the 73rd and 74th Amendment Acts related to
Panchayatiraj and Nagarapalika institutions respectively, Indian
Constitution has added another tier to the federal system. However, powers
of finances of the Panchayats are still left to the discretion of the
state governments.

Ques. 5 : “Our
Constitution is to be as solid and permanent’ as we can make it, yet there is
not permanence in it”. Examine?

Ans. An amendment to the
Constitution may become necessary for any reason like national security, social
progress, national integration and so on. The method to amend the Constitution
is rigid in a federal polity- that is a special and elaborate method is
prescribed involving both the Union and the States. A flexible constitution is one
that can be amended like an ordinary law - states are not involved. Indian
Constitution is rigid as far as amendment to the federal features are
concerned. It is flexible for all other features, that is a special majority in
the Parliament is enough for the Amendment Bill to be passed. Jawaharlal Nehru,
while justifying this nature of the Constitution, said, “Our Constitution is to
be as solid and permanent’ as we can make it, yet there is no permanence in a
Constitution. There should be a certain amount of flexibility. If you make
anything rigid and permanent, you stop the nation’s growth, the growth of a
living vital organic people.”

Welfare State

At the time of
Independence India was an impoverished country. There was large scale poverty
and deprivation. Historically inherited social divisions marked the society.
Since markets were not well developed and many were outside the economic
system, Government took upon itself the responsibility to provide welfare to
the vast majority of vulnerable people. Constitution has many features that
commit the country to a welfare State. The Preamble to the Constitution was
amended in 1976 (Forty-second Amendment Act, 1976) to insert the goal of
socialism. Directive Principles of State Policy (Part IV) aim at the establishment
of a Welfare State in India. Progressive taxation, developmental interventions
like the various flagship programmes of the government (MGNREGS),
nationalization of banks in 1969 and 1980, land reforms and various subsidies
are meant to establish a welfare state. Affirmative action (positive
discrimination) by the Government in favour of the socially marginalised like
dalits is an important aspect of the welfare state.

Fundamental Rights

As a hallmark of the
democracy that the Constitution establishes, Fundamental Rights are provided in
Part III to citizens (Art.15,16,19,29 and 30) and others. They are fundamental
to the development of the individual and the society and so they are called
Fundamental Rights. They are given extraordinary protection with the Supreme
Court being made directly accessible under Ar’t.32 and High Courts under
Art.226 to issue writs to restore the Fundamental Rights in case they are
violated.

The Fundamental
Rights conferred by the Constitution are broadly classified under the following
groups:

The
Right to Equality;

The
Right to Freedom;

The
Right against Exploitation;

The
Right to Freedom of Religion;

Cultural
and Educational Rights; and

The
Right to Constitutional Remedies.

The Right to Property
was deleted as a Fundamental Right by the Forty-fourth Constitution Amendment
Act, 1978 and is made into an ordinary Constitution right (Art.300A).

Directive Principles
of State Policy

Borrowed from the
Irish Constitution, Directive Principles of State Policy constitute a
distinctive feature of Indian Constitution. DPSPs are a set of social and
economic obligations imposed on the Government- Union and State- to establish a
welfare society. They are not justiciable (non-implementation of the DPSPs can
not be challenged in courts) but are fundamental to the governance of the
country (Art.37). Democratic decentralization through local self government,
equitable distribution of wealth, welfare of workers, uniform civil code,
improvement in the health standards of the people, commitment to contribute to
international peace are some of the obligations that the DPSPs sets for the
Government.

Many amendments to
the Constitution as well as landmark judgements of the Supreme Court have
contributed to the implementation of the Directive Principles For example, 73rd
and 74th Amendment Act, 1992 for Panchayatiraj institutions.

Ans. A natural corollary
of a pluralist and democratic Constitution is secularism which has the
following meaning

State
has no official religion

State
and religion are separate

State
has an equi-distant policy towards all religions

All
individuals have the right to pursue the religion of their choice

Additionally, in
India minorities- both religious and linguistic- are given special protection
(Art.29 and 30) so as to preserve the diversity within unity.

Unified, Hierarchial
And Independent Judiciary

Indian Constitution
provides for a single integrated judiciary headed by the Supreme Court. Each
state, or a group of them, has a High Court with administrative control over
the subordinate judiciary (district and below). It is unlike in the USA where
there are two sets of courts—one for each state and one for federal laws and
matters. In India, Supreme Court can be approached to challenge any verdict of
the High Court and other courts. Such a system plays an important integrating
role and maintains the unity of the country. Thus, it is said that the Supreme
Court has a ‘unifying effect’ on the country.

Ques. 7 : What is a
Constitution? Bring out the salient features of the Indian Constitution?

Ans. The Constitution
contains many provisions for an independent and impartial judiciary. For
example, the judges of the Supreme Court and the State High Courts have
security of service. Independence of judiciary ensures that there is no
pressure on the judiciary to be biased. The judges can be objective and
impartial.

Universal Adult
Franchise

The Constitution
provides for Universal Adult Franchise. The citizens of India who are 18 years
of age and above have been granted the right to vote irrespective of any
qualification pertaining to education, possession of property or payment of
income tax. To bring the Scheduled Castes and Tribes at par with the other
communities of the country, some seats have been reserved for them in the Union
Parliament, State Legislatures and local bodies in accordance with their
population. There are reserved parliamentary and assembly constituencies from
where only the members of the Scheduled Castes or Tribes can contest elections.
In the Budget session of the Parliament (2008), 108th Constitution Amendment
Bill was introduced to give reservation to women in the Union and State
legislatures.